Mr Jonathan Rossiter v Ford Dynasty Pty Ltd t/as Lasseters Hotel Casino and Alice Springs Convention Centre

[2014] FWC 3235

[2014] FWC 3235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jonathan Rossiter
v
Ford Dynasty Pty Ltd t/as Lasseters Hotel Casino and Alice Springs Convention Centre
(U2013/13640)

COMMISSIONER STEEL ADELAIDE, 15 MAY 2014

Termination of employment - Genuine redundancy.

Application

[1] This is an application by Mr Jonathan Rossiter (the applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Ford Dynasty Pty Ltd.

Overview

[2] The applicant commenced employment with the respondent on 16 July 2009 as a “Web Developer/Graphic Artist”. On 11 June 2013 the applicant, in a meeting with the respondent, was orally advised and received a document that confirmed the respondent was considering “disestablishment” of his role (making his position redundant) and he was being provided with an opportunity to provide a submission in writing on the proposed redundancy that may include alternatives to disestablishment such as redeployment to a similar role (if available); or transfer to a lesser role (if available). The applicant was offered paid leave up until 13 June 2013 to consider and prepare a response.

[3] The applicant later that day left work and proceeded on sick leave from 12 June 2013 and subsequently provided certificates of incapacity for the periods, 11 June 2013 to 22 June 2013 and 24 June 2013 to 1 July 2013.

[4] The applicant provided a written submission to the respondent arguing against his proposed redundancy on 24 June 2013. The applicant was subsequently invited to a meeting with the respondent on 24 June 2013. He declined to attend due to health reasons. The respondent attempted to arrange a meeting for 3 July 2013. The applicant did not respond to this invitation.

[5] The applicant lodged a worker’s compensation claim on 3 July 2013 for a psychological injury sustained at work.

[6] On 26 July 2013 the respondent after initially attempting to arrange a meeting that day with the applicant, which was declined by the applicant for health reasons, delivered a letter to the applicant’s mailbox. This letter was titled “Termination of your employment by reason of redundancy”. The letter advised that his position had been made redundant and he was to be retrenched effective 27 August 2013. The letter further stated that:

“We offered you redeployment to current open positions (which are primarily hospitality positions) with Lasseter’s however we understand that you were not prepared to accept redeployment to this type of employment.” 1

[7] On 6 August 2013 the applicant, by email, notified the respondent that he was taking three weeks unpaid paternity leave. This was later amended to include workers compensation or sick leave. Consequently the applicant was not at work between 11 June 2013 being the day he received advice of his proposed redundancy and his termination date of 27 August 2013.

[8] The respondent submits that the dismissal was a case of genuine redundancy in accord with s.389 of the Act and asserts a jurisdictional objection to the application.

[9] The applicant submits his dismissal was not a case of genuine redundancy and hence his dismissal was unfair. He is seeking compensation of 14 weeks pay. He had received appropriate notice of termination and was paid eight weeks severance payment on separation, having been paid some leave with pay and various sick leave and workers compensation payments. The applicant says: he was unwell until mid-October 2013 and has been working as a sub-contractor and seeking such work; he has also been searching for employment on various web sites and he has been at home as the primary care giver for his baby since January 2014.

The evidence

[10] The applicant represented himself and provided submissions and testimony. He provided various documents which included a combined outline of argument and personal statement of facts.

[11] The respondent was represented by Mr Darcy, agent for the respondent, with the permission of the Commission. The respondent provided four witnesses; Ms Sarah Butler, Mr Glenn Kitto, Mr Christopher Sartori and Mr Thomas Bricknell. The Commission found all witnesses endeavoured to assist and were generally reliable.

[12] The Commission considers the application is not compromised by any other provisions of the Act and can proceed for determination. The Commission has given due regard to the totality of evidence in this matter and has considered the material provided in terms of equity, good conscience and the merits of the arguments. Where versions of events differ a view has been determined on the probability of the events in question and a consideration as to the credibility of the proposers of such events.

The meaning of genuine redundancy

[13] The meaning of genuine redundancy is dealt with by s.389 of the Act which relevantly states:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

The relevant submissions of the parties

[14] The respondent submits that the dismissal of the applicant was not unfair but was a genuine redundancy in accordance with s.389 of the Act. It is asserted the respondent did not require the applicant’s job of Web Designer to be performed by anyone because of changes in the operational requirements of the enterprise and the job being outsourced (s.389(1)(a)). That the respondent had consulted with the applicant. That the applicant could not have been reasonably redeployed within the respondent’s enterprise or an associated entity of the respondent (s.389(1)(b)).

[15] The respondent asserts that the applicant does not argue in regard to s.389(2) that it would have been reasonable for the respondent to redeploy the applicant to another position or role.

[16] The respondent submits that consequent to the applicant’s redundancy no employee performs the former role of the applicant. That the redundancy was determined for budgetary reasons and the role and function outsourced.

[17] Further, that in regard to s.389(1)(b), no modern award applied to the applicant nor did the evidenced Ford Dynasty Pty Ltd Enterprise Agreement 2005 apply to the applicant’s employment. Hence there was no required obligation to consult on redundancy with the applicant.

[18] In the alternative it is submitted that if it is found an obligation on the respondent arises from the industrial instruments and such obligation was not complied with, the dismissal was not unfair and no disadvantage to the applicant arises as the applicant was in fact consulted with and given information and discussion on the reasons for redundancy and the opportunity to respond to the proposed decision. The respondent relies on the view of Watson VP in the matter of Maswan v Escada Textilvertrieb t/as ESCADA 2 (Maswan)in which the Vice-President states:

“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”

[19] In regard to s.389(2), the possibility of redeployment was put to the applicant in the meeting and in the letter provided on 11 June 2013. The applicant did not respond to those references and invitations. The respondent made enquiries of their own volition, after consulting the applicant’s CV, to identify his relevant experience, with their associated entities being; Cypress Lakes Resort, Golden Door Health Retreats, Grand Mercure and Cypress Lakes Golf Club, as to whether they had a vacant role for a web designer. Similarly enquiries were made to Lasseters Wharf Casino New Zealand as to vacant roles for a web designer. Those enquiries did not identify any vacancies.

[20] The respondent further relies on the decision of a full bench of Fair Work Australia (as it was then known) in the matter of Ulan Coal Mines Limited v Honeysett and Ors 3 (Honeysett) as an illustration of the interpretation of the requirements of s.389(2) and the requirements on an employer.

[21] The full bench stated at paragraph 26 of that judgement:

“...In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.”

[22] Then in relation to answering the relevant question the decision further indicates at paragraph 28:

“They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”

[23] In contrast to this requirement the applicant and the respondent in this matter cannot identify a position, its qualifications, the necessary skills, the location or remuneration that was available to be considered at the time of redundancy. Hence we cannot examine effectively that position its qualifications and requirements if it existed at that time.

[24] The conclusion of the full bench in the matter of Technical and Further Education Commission t/as TAFE NSW v Pykett 4in effect endorses the decision in Honeysett in as much as it states:

“[34] Honeysett is authority for the proposition that for the purpose of s.389(2)(b) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances.”

[25] Therefore in this matter the respondent cannot identify a job within the enterprise or that of an associated entity that it would have been reasonable in all the circumstances to redeploy the applicant to. That is, there is no evidentiary basis to consider. The respondent canvassed for roles for the applicant before making the final decision the point of examination being; was there a job to put the applicant into and whether he had the appropriate skills to do so.

[26] The applicant in contrast did not want a job in hospitality or gaming. He further did not want to move location from Alice Springs.

[27] The applicant submits that his dismissal was not a case of genuine redundancy as contemplated by the Act. The applicant was employed for over four years as a Web Designer/Developer completing in-house a substantial proportion of the total work required of the respondent with the balance being outsourced. The applicant asserts that his workload was increasing after January 2012 as Ms Butler was delegating more work to him. Their relationship deteriorated after April 2013 and he asserts this was a consequence of her reaction to his criticism of some outsourced work.

[28] He was provided on 11 June 2013 with advice of the redundancy of his position. He was effectively excluded from work as his passwords would not work and he was provided with paid leave to consider his response to the potential redundancy.

[29] The applicant proceeded on sick leave from 12 July 2013 and provided various certificates of incapacity for work. On 26 July 2013 he was invited to attend a meeting. He declined to do so and later was provided with “a termination of employment by reason of redundancy” advice from his employer. This provided for 30 days notice of termination.

[30] The applicant says this was a sham redundancy aimed at settling a personal conflict between Ms Butler and himself.

[31] He asserts that the sale of properties by the respondent did not give rise to any effect on his work. That there was plenty of work currently outsourced that he could do.

[32] Further that there was no downturn in the company’s business giving rise to a redundancy. That he was the only redundant employee. That there are no savings on his redundancy. That the financial reports in regard to his intended work were inflated in terms of his costs to the respondent.

[33] The applicant asserts that consultation requirements within s.389 were not met by the respondent. That the Ford Dynasty Enterprise Agreement 2005 at clause 6 required the respondent to consult. That he was effectively dismissed on 11 July 2013 as he was denied access to computers thereafter. That he was not provided with adequate material to justify his outsourcing and the respondent failed to have an open dialogue with him by denying him work access.

[34] Lastly, that he was currently on sick leave for stress and thus unable to produce appropriate submissions in any event, a view that was relied upon by the respondent in terms of dismissal. That the company failed to consult and the dismissal was not a genuine redundancy.

The relevant evidence

Ms Butler

[35] Ms Butler provided evidence for the respondent. Ms Butler was the marketing manager with Lasseters Hotels and Casino and was the applicant’s supervisor. Ms Butler made the decision to make the applicant redundant based on operational business reasons. Under examination from Mr D’Arcy she states:

“...I looked at our current team and decided, based on operational business reasons, how I could make the team more efficient, more effective and utilise some of the cost efficiencies that I could gain from outsourcing with some preferred clients.” 5

[36] Ms Butler gave evidence of the work that was outsourced that the applicant previously worked on. This in terms of total graphic design workload of the respondent amounted to about 30% of the total required. The balance being contracted or outsourced to contractors or to print clients. A substantial part of the work in question was template work. 6

[37] In terms of the Alice Springs Convention Centre task requirements, the applicant had previously worked on this project as a priority. Once completed by a contractor, the maintenance of this site was not required to be ongoing as it was to be resourced from the Convention Centre budget. Similarly the Golden Door web site would be paid for by that company as it is no longer the Lasseters CEO’s responsibility and will not be completed by Lasseters’ employees.

[38] Ms Butler submitted the respondent had identified a substantial saving, being the applicant’s former salary by outsourcing his former work role. Such outsourcing achieved more favourable terms for the respondent from their print contractors, website designers and commercial production work. 7

[39] The former subsidiaries and related companies of the respondent (Convention Centre and Golden Door) now do work in-house by direction of the parent company. This work is now their financial responsibility and the previous arrangement using the applicant’s services was stopped.

[40] Because the applicant was absent from 11 June 2013 onwards those companies required various tasks or services to be completed and a solution was found to resolve those requirements.

[41] Ms Butler commenced a budget review in March 2013 and was examining options in mid-April in discussions with other management personnel. In April and May she had identified some alternatives in regard to outsourcing and commenced discussions with Human Resources personnel. She met with the Chief Operating Officer, Mr Sartori, on 27 May 2013 and proposed an assessment of the outsourcing of the web designer function position held by the applicant. Mr Sartori required Ms Butler to prepare a report analysing the financial and other implications of the cost saving measures and provide a recommendation. On 3 June 2013 Ms Butler provided a recommendation to Mr Sartori to outsource the applicant’s role. On 6 June 2013 Ms Butler received the approval for the proposed redundancy. Ms Butler subsequently consulted the IT personnel regarding possible security implications of the applicant’s redundancy.

[42] The meeting with the applicant was held on 11 June 2013. The applicant was provided with a letter and advised his role was to be made redundant. He was asked to consider redeployment into other open positions and was referred to such vacancies and asked to respond if he was interested. He was given a few days leave on full pay to do so. The applicant went on sick leave from 12 June 2013, retrospective to 11 June and then variously workers compensation leave and requested paternity leave.

[43] The applicant provided a written submission on 24 June 2013 to the respondent.

[44] From 4 July 2013 the respondent engaged various contractors to provide services that were formerly provided by the applicant’s role of web designer and that were required to be completed. Subsequent to the applicant being made redundant these services were permanently retained from these contractors.

[45] Ms Butler asserts the applicant was made redundant because of the cost savings from his role being outsourced and because of the imminent reduction in work for the web designer due to the sale of other businesses.

[46] Ms Butler also asserts that because the respondent could not meet with the applicant, as he denied his attendance at three meetings both personally and though contact with a Mr Flynn, the respondent advised him by letter of the decision on his redundancy.

[47] The applicant did not return to work nor respond to the advice of redundancy of 26 July 2013 and was ultimately terminated on 27 August 2013.

[48] In regard to the accusation on a relationship issue Ms Butler asserts a decision was made on the loyalty cards project that it be given to an external specialist provider. The applicant was advised but endeavoured to provide his view of such work and design even after the external finished product had been approved by management. Ms Butler denies any assertion that she made a decision on redundancy because of an asserted relationship issue with the applicant. 8

Mr Sartori

[49] Mr Sartori indicated that Lasseters Casino is owned by Ford Dynasty Pty Ltd, which is owned by Lasseters International Holdings (LIH). LIH owns Wharf Casino Queenstown (NZ), Cypress Lakes (NSW), the Golden Door franchise (QLD) and Elysia (NSW).

[50] Ford Dynasty Pty Ltd was paying for the web support for all entities. The applicant’s costs were therefore born by Ford Dynasty Pty Ltd. The 27 May 2013 proposal to outsource the applicant’s web developer work was based on a cost analysis and relevant information was considered. The applicant’s submission of 24 June 2013 and the applicant’s comments about properties owned by the parent in Vietnam and Melbourne Mr Sartori asserted were inaccurate in that they were not owned by Ford Dynasty Pty Ltd.

[51] Various related body corporates were provided with financial and IT services as well as web design but not all the services they required were provided and they had to respectively source some services externally. 9 Similarly the applicant would manage services he provided to these entities as against his priorities in regard to the respondent as his employer.

[52] Mr Sartori reported that a business development executive position was made redundant 12 months ago. 10 That the Wharf Casino was sold on 23 July 2013 to SkyCity and that Cypress Lakes was sold but Golden Door remains as an asset.

[53] Mr Sartori further submitted that his instructed email advice to properties as of the applicant’s redundancy on 3 July 2013 was to indicate to those properties they had to find those services themselves and to make such arrangements. 11 Mr Sartori says the decision on the applicant’s employment was not made until 26 July 2013. Ms Butler supports this view that it was a reference to a role as the applicant’s employment was still being considered. The applicant was on various leave and work was to be completed notwithstanding the final resolution of his employment. Enquiries as to services were being made and had to be resolved.

Mr Kitto

[54] Mr Kitto confirmed Ms Butler’s version of events as to the consideration of outsourcing the applicant’s position. In the meeting with applicant on 11 June 2013 Mr Kitto advised the purpose of the meeting, being disestablishment of the applicant’s role. He invited the applicant to make submissions on the proposal including redeployment to other roles. Mr Kitto had organised and offered paid leave to the applicant as a consequence of the meeting with the applicant, recognising that such circumstances were potentially stressful to him.

[55] Mr Kitto says he clarified the term disestablishment to the applicant in the meeting, being the same as redundancy, apparently being terminology utilised in the New Zealand employment Act.

[56] The applicant’s sick certificates were retrospective from 11 June 2013 until the 7 July 2013, resulting in a few days unpaid sick leave. 12 On 3 July 2013 the applicant lodged a Workers Compensation claim for the period up until 6 August 2013. The applicant was paid some moneys by the Workers Compensation insurer because they missed a time deadline in the application. The applicant then advised the respondent he was going on unpaid parental leave, then subsequently retracted this and resumed on workers compensation leave.13 The applicant was dismissed on 27 July 2013 and required to work his notice but did not do so. The notice ended on 27 August 2013 when his employment came to an end.

[57] In regard to the applicant’s response submission of 24 June 2013, Mr Kitto says the respondent considered his response, however it did not provide lot of information on the applicant’s approach to redeployment. The respondent’s letter and advice indicated that the applicant had the option of finding an alternative position but they had not advised of future vacancies within the group.

[58] Regardless of the lack of response by the applicant to redeployment the respondent enquired with other entities about potential vacancies at Cypress Lakes NSW and Lasseters Wharf Casino in Queenstown. The responses were negative.

[59] Intending to meet with applicant the respondent sent emails to him. These requests were not successful as the applicant always declined to meet as he was on sick leave. Consequently the applicant did not return to work with the respondent. The applicant was denied access to computers as his password was removed for security reasons, however this did not result in him being denied access as the applicant, in fact, never required access as he never returned to work. If he had done so, the access situation may have been resolved.

[60] In regard to the submission made by the applicant whilst on sick leave and his request that a decision by the respondent not proceed while he was on such sick leave, the respondent says the applicant was given ample opportunity to submit such a response. However what was received did not discuss redeployment or other options.

[61] Mr Kitto confirmed that the decision on making the position redundant was made after the applicant’s submissions of 24 June 2013, when his replies were assessed and consideration of redeployment options was made. The applicant’s CV was examined again and the respondent identified a number of positions were potentially available in security or food and beverage. Further communication was frustrated as the applicant did not return to work and was not available to the respondent.

[62] Mr Kitto says he did not consider other positions at other facilities other than a web developer and he did not advise the applicant of any other vacancies at any other establishment. He says he spoke to those facilities about the applicant’s skill set. He did not discuss any vacancies with the applicant between 11 and 24 June or thereafter apart from advising him to review the website. The web site would not contain potential vacancies. 14 A position in marketing at Golden Door was advertised but not provided to the applicant as the respondent had no knowledge of any marketing experience of the applicant.

[63] The respondent assumed the applicant was not going to attend meetings because of his pattern of absences and refusals to attend and the advice provided by a Mr Flynn, the applicant’s advisor, who provided information of his non-attendance. The applicant was provided with notice on 26 July 2013 of 30 days. He did not return to work or communicate with the respondent

The applicant

[64] The applicant accepts that his manager decided what tasks he would work on and what would be outsourced. 15 He did work for other entities, sometimes on major project work.

[65] In the conversation on 11 June 2013 the applicant accepts he was advised of the proposed redundancy, that he could be redeployed into another position and was referred to the website information. He submits that he indicated in his submissions that he was interested in redeployment despite the document being somewhat neutral as an expression of interest.

[66] The applicant as a consequence of his dismissal has been looking for work that he can do remotely, thus maintaining his domicile in Alice Springs. He is not interested in moving unless it was a decent paying job, but had considered a position in Darwin. 16

[67] The applicant was not interested in hospitality type positions or re-skilling for them (i.e. pit boss or barman) because they are lesser paid. 17

[68] His subsequent absence was a mixture of various types of leave and he accepts Mr Kitto endeavoured to arrange meetings with him between 24 June and 26 July 2013.

[69] He has applied for various positions such as communications officer and in tourism but was unable to work because of illness until mid October 2013.

[70] Comments by Mr Bricknell regarding a warning to the applicant “to watch my back” in May 2013 demonstrated a conflict with Ms Butler. The applicant says her attitude towards him changed and became a cold shoulder because he went to Mr Sartori.

Mr Bricknell

[71] Mr Bricknell denies the applicant’s version of discussions with him regarding warnings about issues with Ms Butler. He says that in May the applicant was telling people he had been made redundant.

Consideration

[72] The Commission’s task in this matter is determining whether there has been a genuine redundancy pursuant to the terms of the Act provided above.

[73] Firstly the requirements of s.389(1)(a) and the applicant’s job. From the weight of evidence the Commission has formed a view that the applicant’s job position was not required by the respondent to be performed by anyone because of changes in operational requirements of the respondent’s enterprise.

[74] The applicant’s role was a minor part of the work required in graphic design and web development work. The balance of work being 60-70% being historically outsourced to service providers. The applicant’s work also was subject to prioritising of his duties by the respondent. The respondent has identified various cost savings backed up by tenders from service companies and subsequent to the applicant’s redundancy those arrangements for relevant work prevail. The evidence of Ms Butler and Mr Kitto is persuasive in terms of a method applied to evaluate the outsourcing decision and the decision made by the respondent. The job the applicant was performing was no longer required to be done by an employee.

[75] Secondly, s.389(1)(b). Did the employer comply with an obligation to consult? Does a Modern Award or an enterprise agreement apply to the applicant in this matter and is there an obligation in that Modern award or enterprise agreement that applied to the employment to consult about the redundancy?

[76] The respondent asserts that they were, in regard to the applicant’s dismissal, award and agreement free. Further that they had no obligation under a modern award or prevailing enterprise agreement to consult with the applicant pursuant to s.389(1)(b).

[77] From the evidence and on examination the Commission cannot identify a Modern Award that applies to the applicant’s role.

[78] The Ford Dynasty Pty Ltd Enterprise Agreement 2005 (the Agreement) is the prevailing enterprise agreement of the respondent and provided within discovery of documents. Clause 2 of the agreement, the “Parties Bound” clause would seem to cover the respondent’s employees. It states:

“2. PARTIES BOUND

The parties to the Agreement, and on whom the Agreement is binding are Ford Dynasty Pty. Ltd. (“the company”) and its employees.”

[79] The applicant was an employee at the respondent’s facility.

[80] Clause 3, the “Scope of the Agreement” in part states:

“...Provided further that where a written contract of employment exists (i.e. a “salary package”) or is entered into between the company and an employee which is inconsistent with a term or terms of this Agreement, to the extent of the inconsistency, the contract or salary package terms, shall prevail.”

[81] The applicant has a written “Employment Offer and Contract” being a document provided to him from the respondent and dated 30 June 2009 which specifies under the heading “Terms of Contract” that the above-mentioned Enterprise Agreement applies. Further the contract nominates a “Policy and Procedure manual (“Manual”) which applies to your employment with the Company”.

[82] Therefore not withstanding that the Enterprise Agreement does not include classifications akin to the applicant’s role with the respondent, the Commission finds that the applicant’s contract of employment determines that the Enterprise Agreement applies to an extent to his employment as does the Policy Manual referenced.

[83] Clause 13 of the Agreement, the “Redundancy” clause makes no provision for consultation with an affected employee. Clause 36, “Introduction of Change” provides for the company to give as much warning as possible to an employee of impending changes likely to impact on their position. It refers to an exchange of information and discussions with advisors, such as a union. Clause 39, “Consultative Committee” refers to the establishment of a committee that is “...established and operates under its own constitution” to discuss and consider matters affecting employees, etc. It does not refer specifically to such matters as redundancy.

The Staff Handbook Policies and Procedures Manual

[84] This document is the amended and updated manual applying to the applicant’s employment. It is nominated in his written contract of employment and hence relevant because of the reference to that contract’s precedence in the Scope Clause of the Enterprise Agreement.

[85] It provides for many positive arrangements including a “Workplace Charter” of rights and responsibilities.

[86] Part 6 is titled “Termination of Employment” and includes a sub-heading “Dismissal” and reads:

“It is company policy that in respect to termination of employment, employees are treated fairly and equitably and employees are made aware of their rights and responsibilities both as employees of the company and at law.

Subject to this policy and any relevant laws, the company will not terminate any employee’s employment unless:

n there is a valid reason;

n the employee is afforded procedural fairness;

n there is an appropriate period of notice or warning of the termination;

n there is full and frank exposure of the relevant facts and issue surrounding the particular termination.”

[87] The policy then addresses “Dismissal Without Warning” or summary dismissal, which is not relevant in this matter.

[88] Under the heading of “Redundancy” it states:

“For the purposes of this policy “redundancy” means when an employee’s job is to be completely eliminated and not performed by any one at all employed by the company. It means the position is no longer required, not just the particular individual filling that position. It is Lasseters Policy to avoid redundancies, and wherever a situation arises where redundancies are a possibility, every effort will be made to re-deploy staff. Casual employment use, use of contractors etc. will be reviewed.”

[89] Given the above references to rights and responsibilities, the notice required, procedural fairness required, full and frank exposure, the avoidance of redundancies and every effort by the respondent to redeploy staff the Commission concludes in the circumstances that the respondent had an obligation to consult arising from the Enterprise Agreement and hence and obligation to be complied with in regard to s.389 of the Act. It would be extremely difficult given the above requirements on the respondent for them not to engage in active discussions with the applicant that would be other than consultations on his potential redundancy.

Has the employer complied with the obligation to consult?

[90] The Commission is satisfied that the respondent endeavoured to provide as much notice as possible to the applicant that his position was potentially redundant. The formation of an economic case for his role to be outsourced on the evidence was not excessive, but required management consent at various levels, including overseas principals. The time gap between formal approval and the advice of 11 June 2013 was a short few days during which the respondent satisfied themselves as to the IT security of their systems, software and hardware. This, in the Commission’s view, is understandable given the specialist nature of IT, the dependence of the respondent on such systems and its susceptibility to harm.

[91] The letter of 11 June 2013, given to the applicant in the meeting is evidence of consultation. It states:

“...the Company is proposing to disestablish the role of Web Developer and outsource the functions and task that you currently undertake and now consider it appropriate to commence consultation around this process.”

[92] The applicant was advised of the proposed redundancy (disestablishment) of his role and its outsourcing. He was not advised he was to be terminated in employment at this time. He was invited to give feedback submissions on the proposed redundancy including redeployment to a similar role if available, transfer to a lesser role if available, or acceptance of a redundancy compensation. His submissions would be considered before a final decision is made about proceeding with the redundancy of his role. He was given paid leave (four days) to consider and prepare a response. He was invited to arrange a support person and he was also directed to the Fair Work Ombudsman.

[93] The conversation in that meeting from the evidence of Ms Butler and Mr Kitto is such that the applicant was referred to the web site of the respondent in terms of open vacancies and invited to subsequently indicate to the respondent if he was interested in such vacancies.

[94] The applicant’s reply submission of 24 June 2013 indicates the applicant’s reaction to the previous advice. He indicates: he is stressed; that lack of access to files is limiting his response; that the business rationale regarding his job being outsourced is too simplistic and seeks more relevant information; he disputes the business case in regard to disposal of properties and the amount of work he was involved in with such properties; that his time recently has been in high demand in-house; that the company is expanding; that he has been given no evidence of the information the respondent has based its decision on. The applicant is certainly not accepting that there is an operational basis for his redundancy and he is reacting against that decision.

[95] Also, in terms of redeployment, he complains he has been given the option of finding an alternative position within the organisation but has not been given an indication of likely future vacancies within the casino or the group as a whole. The applicant does not give a view or mention the invitation to review current vacancies on the respondent’s web site he was referred to.

[96] The applicant, though given paid time off work, went on sick leave that same day, and was not available to meet for the further meeting organised for 14 June 2013. His sick leave continued until 1 July 2013, then again until 22 July and also from 26 July 2013. The respondent during this period endeavoured to arrange meetings with him for further discussion on 1, 3, 23 and 26 July 2013. The applicant was warned by the respondent for not contacting or providing reason for his non-attendance at work on 3 and 23 July 2013. The applicant apparently did not make himself available because of his ill health. The medical certificates provided by the applicant available to the Commission are from different doctors and mention a medical condition only. However, in various documents the applicant advises he has aggravated an existing medical condition and is stressed.

[97] In these circumstances the respondent has sought to arrange meetings to meaningfully consult with the applicant and receive the information and advice from him as an opportunity to influence their decision and also to receive further information from the respondent. That process was frustrated because of the non-availability of the applicant.

[98] The respondent faced with this frustration decided to proceed with the redundancy of the applicant’s position and his employment. He was advised by letter on 26 July 2013 of those decisions. He was given 30 days notice of termination and if he returned from personal leave he was required to work the remainder of the notice but would be given time off to look for alternative employment. He was advised he was to be paid eight weeks redundancy pay on termination.

[99] In these circumstances the Commission recognises the respondent has endeavoured to consult with the applicant and sufficiently met their obligation in that regard. They have advised him of the proposed redundancy and sought response from him. When the applicant has been absent on sick leave the respondent has sought to meet and consult with the applicant whenever he was due to return. The applicant during the period was on various forms of leave, including parental leave, and it is persuasive the respondent sought to arrange at least three meetings with him. The applicant’s role was redundant, his sick leave was apparently exhausted, the status of his workers compensation claim is not clear and he was providing minimal and at times late information to the respondent. It seems evident that it was the applicant’s actions that have truncated the consultation. Further, due to the various changes to his leave or forms of leave, it is not clear to the Commission he was sufficiently indisposed to not communicate with his employer.

[100] Faced with these circumstances the Commission considers the respondent’s reaction to bring the employment to an end was within the reasonable options available to them at that time. The applicant’s absence had apparently assisted the timing of the confirmation of his redundant role as various work needed to be organised externally. There must be a practical and reasonable limit to the obligation on an employer to consult in these circumstances as per the scenario previously referred to in the Maswan decision. This is not a case on the available evidence where the applicant was hospitalised or apparently unfit to communicate with his employer. The applicant on being advised of his job redundancy had left the workplace and not returned for various reasons including parental leave. If an employee in these circumstances does not respond or continue the communication with the respondent in face of the employer’s attempts to do so, it is unreasonable to expect the respondent employer to continue this situation and just sit on their hands and allow and untenable employment relationship to continue.

[101] In regard to s.389(2) a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the applicant to be redeployed within (a) the employer’s premises or (b) the enterprise of an associated entity of the employer.

[102] Whether it was reasonable to redeploy depends on the circumstances that existed at the time of the dismissal (see Honeysett case).

[103] The evidence is that the respondent employer had only positions available in the hospitality and gaming areas. These were advertised on the website the applicant was directed to in the meeting of 11 June 2013. The evidence is that he was directed to these vacancies within an offer to consider redeployment. 18 The applicant apparently reacted to his notice of job redundancy and thereafter did not attend work. Nor did he attend various meetings organised by the respondent. He claimed various kinds of leave including sick leave, Workers Compensation and parental leave but was not available to assist or respond to the respondent. In his response to the respondent of the 23 June 2013 he does not specifically respond to the referenced vacancies but states he has:

“...been given no indication of likely future vacancies within the casino or the group as a whole.” 19

[104] This reply may indicate he was therefore aware of the current vacancies but had chosen to not respond to them as requested for his own reasons. The evidence of the applicant in cross examination in regard to those referenced vacancies is significant. He states a view that he was not interested in those positions or re-skilling for those positions. 20

[105] The Commission, given the above circumstances, therefore concludes that at the time of dismissal it was not reasonable to redeploy the applicant to the available roles within the respondent’s premises.

[106] In regard to other redeployment as contained within s.389(2) the evidence is that the respondent researched the applicant’s CV and sought by consultation with related entities the availability of positions that may be suitable, given his qualifications, experience and skills, the location, remuneration etc. They could not identify in that process an available role given these criteria.

[107] The applicant’s evidence is that he did not want to move from Alice Springs. He was looking for work outside of Alice Springs but was seeking to work remotely. He would consider moving if the remuneration was acceptable to him. 21 He further was not interested in the gaming and hospitality work available. The respondent could not identify a role suitable for consideration in respect to redeployment and the applicant also has not identified a role that should have been considered. In the evidence it is also identified that the applicant was not available for employment or work until mid-October 2013 because of stated health issues and that he has consequently been the primary care giver since January 2014 to his baby daughter. The Commission considers these are significant restrictions on the considerations and practicality of redeployment to other entities by both the applicant and the respondent and on the consideration of the applicant if vacancies had been identified.

[108] In the circumstances of this application and with due regard to the precedent law in these matters the Commission therefore cannot identify a role that it would have been reasonable in all the circumstances that the applicant could have been redeployed to at the time of his dismissal.

Conclusion

[109] The Commission therefore finds that in all aspects of this application the employer has complied with the obligations of ss.389(1) and (2) of the Act. The applicant’s dismissal was therefore a case of genuine redundancy and hence not unfair in terms of the requirements of the Act. This application is therefore dismissed.

COMMISSIONER

Appearances:

Mr J Rossiter in person

Mr D D’Arcy for the respondent

Hearing details:

2014:

Adelaide/Alice Springs

17 February, 5 March

 1   Exhibit R1, Annexure D

 2   [2011] FWA 4239

 3   [2010] FWAFB 7578

 4   [2014] FWCFB 714

 5   PN 76

 6   See PN 175-185

 7   PN 101

 8   PN 136

 9   PN 335

 10   PN 344

 11   PN 355

 12   PN 421

 13   PN 430

 14   PN 536-542

 15   PN 760

 16   PN 795-799

 17   PN 803-804

 18   PN 116

 19   Exhibit R3, Annexure C

 20   PN 803-804

 21   PN 797-801

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